How To Destroy the Filibuster

Republicans say they’ll block Chuck Hagel and Jack Lew. Democrats are using that threat to change the filibuster.

President Obama shakes hands with Jack Lew after nominating him for Treasury Secretary

Photo by Mark Wilson/Getty Images

On Wednesday morning, most business reporters confirmed Barack Obama’s next choice to lead the Treasury Department: White House Chief of Staff Jack Lew. Within hours, the same reporters got a statement from Alabama Sen. Jeff Sessions, ranking member of the Budget Committee and a man who’ll have some say over whether Lew gets the job.

“Jack Lew must never be secretary of the Treasury,” Sessions said. During Lew’s short time as White House budget director (a role he held in Bill Clinton’s administration, too), he’d testified that the president’s numbers would start reducing the deficit. That was a “false assertion,” Sessions said, and “we need a secretary of the Treasury that the American people, the Congress, and the world will know is up to the task of getting America on the path to prosperity.” He would oppose Barack Obama’s nominee because the nominee had a dangerous amount in common with Barack Obama.

Sessions’ outrage was manna to an unexpected group of people: Democrats. For months, a group of freshman Democratic senators have been trying to nail down 51 votes to reform the filibuster. On Jan. 22, when the Senate votes on this congressional session’s rulebook, they’ll need to keep that group together. Every time a Republican threatens an Obama nominee, their job gets easier.

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“It really does highlight how the intentional paralysis of the Senate, through the use of a filibuster as a party tool, has gotten out of hand,” says Oregon Sen. Jeff Merkley, one of the authors of the reform plan. “Here are qualified people, the president has just won re-election, and [Republicans] are making it as difficult as possible to get them confirmed.”

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Behold, the New Democratic Chutzpah. It shows no signs of slowing. Reporters ask the White House about a once-crazy-sounding idea—minting a $1 trillion platinum coin to avert a debt ceiling showdown—and don’t hear a “no.” Joe Biden hints that the president might take “executive action” to enhance gun laws, gets accused of enabling a “dictatorship,” and doesn’t walk it back. They wave the red cape, see how the bull reacts, and then wave the cape a little harder.

Filibuster reform, that perennial Lucy-and-the-football cause, might be the best example of this new tactic. Last week, Merkley joined New Mexico Sen. Tom Udall and Iowa Sen. Tom Harkin to officially roll out the possible filibuster changes. They would, if successful, eliminate the filibuster on the motions to proceed to votes, reduce debate on nominees from 30 hours to two hours (after the filibuster was broken), make it easier to establish a conference committee, and—most importantly to them—require anyone who filibusters to actually stand up and talk for as long as he or she wants to block the vote.

At the time, the senators said they had 51 votes to pass the new rules. (Only on the “first day” of Senate business, which will extend through Jan. 22, can the rules be reformed by a simple majority.) Three of those votes, perhaps, were dicey. And their biggest impediment was a rival plan, which included none of the filibuster-shortening reforms, from Sen. John McCain and Michigan Democratic Sen. Carl Levin. To succeed, they needed to hold their votes and convince the wafflers to bail on McCain-Levin.

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The obstruction threats against Lew—and to a much greater extent, against Defense Secretary-designate Chuck Hagel—are making their lives simpler. Reformist senators like Merkley are being helped from the outside by a constellation of liberal groups. The Democracy Initiative, 30-odd organs of the left, has been lobbying Democrats for Senate reform. Fix the Senate Now, a slightly older labor-environmental posse, has spent two years lobbying on nothing but this.

“We’ve been saying since the beginning that that this isn’t your father’s Republican caucus,” says Shane Larson, legislative director for Communication Workers of America, describing this week’s Fix the Senate pitch. “When they immediately oppose Chuck Hagel or Jack Lew, it helps cure people of the notion that maybe you could get to 67 votes for Levin-McCain. No. These guys have come in with a stated goal, and it’s all about stopping the government, period.”

As they make that argument, the opposition to Hagel is even more useful than the attack on Lew. Hagel might not have kept many friends in his own caucus, but he’s been reintroduced to the American public as a former Republican senator. His loudest opponents in the Senate, so far, have been Texas Sen. John Cornyn (“Hagel wants us to be softer on the Iranians”) and South Carolina Sen. Lindsey Graham (“an in your face nomination of the president to all of us who are supportive of Israel”). Both of them are up for re-election in 2014. Democrats have watched other senators, like Utah’s Orrin Hatch, tack right to appease the party’s base.

“It's only really now dawning on folks what the strategy is,” Merkley said. “If we can turn back the clock to the Susan Rice nomination, a lot people said: ‘Oh, that's just maneuvering by Republicans to get John Kerry instead and give Scott Brown a chance to come back here.’ With Jack Lew and Chuck Hagel, it becomes so much more apparent that this wasn't a strategy aimed at one Senate seat.”

The reformers want their fellow Democrats to game that out. Who replaces Hilda Solis at Labor? Do they want a fight over that? What happens if the president gets to pick a new Supreme Court justice? Do Republicans threaten to filibuster her, too? And what about the endless backlog of lower-court judges? Sure, Democrats relied on the filibuster to block plenty of George W. Bush’s nominees. They’d still be able to do that to some future Republican president. They’d just need to stand around and talk, and their willingness to consider that rises every time a Jeff Sessions talks about putting another no-effort hold on a top nominee.

“If they want more debate on Chuck Hagel at Defense or Jack Lew at Treasury, then let them talk through the weekend,” Merkley said. “If this former, conservative colleague is so outrageous … they can expend the energy and really filibuster him. Hopefully, then, we’d be able to at least have transparency.”